N6769
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 139 OF 2017

THE STATE
V
JOE WAGI

Kimbe: Miviri AJ
2017	: 23rd 24th 26th May
12th June

CRIMINAL LAW - Plea-Murder- S300 CCA - stab deceased with scissors – drunk - injury to heart - intent to cause grievous bodily harm - first time offender - youthful offender - compensation paid
Facts
Prisoner was drunk armed with a scissors and behaving disorderly and set upon a bystander who escaped. He then set upon the deceased stabbing him once in the back. Deceased ran trying to escape but fell down and the Prisoner set upon him stabbing him a second time on the chest piercing his heart from which he bled to his death. The Prisoner pleaded guilty to stabbing the deceased with a scissors twice intending to cause Grievous Bodily Harm from which the deceased died.
Held   
1.	The value of life and sanctity of life under the Constitution must be protected by strong and punitive sentences in all homicide cases.
2.	Guilty plea loses its significance if aggravation outweighs.
3.	Prevalence of offence.
4.	Serious aggravation
5.	20 years IHL less time in custody deducted.
Cases sited
Enn v The State [2004] SC738 
Java v The State [2002] SC701 
Lawrence Simbe v The State [1994] PNGLR 38
Mangi v State [2006] SC880 
Manu Kovi v the State (2005) SC789 
Simon Kama v The State (2004) SC740
State v Laura (No.2) [1988-89] PNGLR 982
State v Harisu [2006] N3168 
State v Mohavila [2006] N338
Counsel:
R. Luman, for the State
B. Popeu, for Defendant
					DECISION ON SENTENCE
12th June, 2017 
1.	MIVIRI AJ: Joe Wagi is charged, that he on the 5th November 2016 at Tamare, Talasea stabbed Lindon Greg Batari in the back intending to cause him grievous bodily harm and he died, contrary to Section 300 (1) (a) Criminal Code. 
	Brief Facts on arraignment
2.	The defendant was arraigned that on the 5th November 2016 at Tamare Talasea he was intoxicated and causing nuisance. He attacked Tony Giru who escaped, so he diverted his attention to Lindon Greg Batari and attacked him with a scissors stabbing him in the back. Lindon Greg Batari ran attempting to escape and he followed him and Lindon Greg Batari fell to the ground.  Again for the second time Joe Wagi stabbed him in the chest. He was rushed to the hospital and died as a result of the stab wounds. The stab had penetrated the heart of the deceased and he bled to death as a result. Accused intended to cause grievous bodily harm to the deceased but he died.

3.	Section 300 MURDER is in the following terms:

(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

(a) 	if the offender intended to do grievous bodily harm to the person killed or to some other person;
(b) 	if death was caused by means of an act–

(i) 	done in the prosecution of an unlawful purpose; and
(ii) 	of such a nature as to be likely to endanger human life;
(c) 	if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–
(i) 	the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or
(ii) 	the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) 	if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);
(e)	 if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).
Penalty: Subject to Section 19, imprisonment for life.

(2) 	In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3)	 In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person.
(4) In a case to which Subsection (1)(c), (d) or (e) applies, it is immaterial that the offender–

(a) 	did not intend to cause death; or
(b) 	did not know that death was likely to result.
Plea
4.	You pleaded guilty to the charge on the facts outlined above and the tender of the file confirmed your guilty plea of stabbing Lindon Greg Batari with intent to cause grievous bodily harm from which he died at the hospital. 

	Issue

5.	What is an appropriate sentence for you?

6.	This question can be answered by what the Parliament has prescribed under Section 300 (1) (a) of the Criminal Code of life years as maximum penalty, sentencing guidelines trends and tariffs of the Supreme and the National court judgements, circumstances of the particular offence of murder including circumstances of aggravation and mitigation here.

7.	Obviously, your case is not the worst case of its kind of murder cases, but a lethal and dangerous weapon a scissor was used on the most volatile vulnerable part of the body which is the heart and stab inflicted from the back and therefore the maximum penalty of life years will not be imposed but that strong and deterrent term of years will be imposed after considering the trends and tariffs of the Supreme and the National Court judgements and the circumstances of your case here.
Allocutus Defence submission
8.	In allocutus you said:

“Sorry for what I did, I say sorry to the court this is my first time. I say sorry to the deceased family and ask for the mercy of the court. I am a student and I am only child in family and my mother is a sick woman I have a block coconut and cocoa, ask mercy of court to put me on probation to serve time outside and continue my education”

9.	Your lawyer applied for a pre-sentence and means assessment report to be furnished to assist the court in deciding an appropriate sentence against you the defendant. I ordered as applied for two weeks to have both reports furnished to the court. And that report was furnished including the Means Assessment Report for the consideration of the court in determining an appropriate sentence. The Probation report is sourced from the defendant, the parents of the deceased and the parents of the prisoner, but does not get any views of those who are in positions of authority in the village like village court officials, and leaders in the village, priest or catechist or church worker. Also of particular concern is the fact that the deceased has left behind two young children. How old these children are, where is the mother and who is going to care and look after these two children now that he father is deceased.

10.	You are 20 years old single man from Tamare, Talasea educated to grade 9 Malalia High School. You are of the Catholic religion and unemployed. Confirming your allocutus you do not have any prior record of conviction with the law. You say you are a student but there is no confirmation from a school of this fact to show that yes you were a student at the time of the offence and were continuing your education there. The probation report confirmed that you were the third born of five children and not an only child with a sick mother as you claimed in your allocutus. And you were the only male child from your parents John Wagi and wife Jenifer Wagi who are from Simbu Kove in West New Britain. Mother was from Kilu in Talasea. Your parents when interviewed by Probation officer and said you were of good character, and was helpful at home and had a quiet character. Both went further and said that they disapproved of your action. And felt bad as they had built a good relationship with the family of the deceased. Both also confirmed that they had given bel sori money to the family of the deceased to create a dialogue to negotiate peace between the parties. And both said that the crime that you had committed was very serious involving loss of life. And that you must face the consequences but they wanted you to complete your education. And for the relationship between you both to be restored.

11.	The Probation report further confirmed that the family of the deceased demanded K 500, 000 as compensation but that was not possible and only K 6 420 in cash, two live pigs valued at K800 each a total sum of K1600, 184 traditional shell money Rea in Bakovi area, 28 bundles of traditional mats at K280 and K300 worth of garden food were paid to the family of the deceased confirmed by the father of the deceased Otto Lesly and wife Lydia Otto. These payments were primarily by the parents of the prisoner and not the prisoner who had nothing to offer. He was the cause of the matter yet offered nothing to make amends for it. Compensation will not fetter the ultimate discretion of the court in passing sentence that will fit the crime. Compensation is only one matter amongst many that will be considered to arrive at the ultimate sentence for you. It is common knowledge that no amount of money will bring back life but relationship must be restored for peaceful co-existence. 

12.	Your lawyer accepted life years as the maximum prescribed penalty for murder, but argued that a number of years be imposed here. He accepted that it was an aggravated offence, a lethal weapon was used which was a scissor which was used on the venerable part of the body which is the back and the chest. The stab pierced the heart from which the deceased bled to his demise. But the defendant pleaded guilty and therefore the sentence should reflect that fact in his favour and accord him in the sentence as fitting. There was no pre-planning and it was an isolated incident. He urged that there was provocation that the victim swore at the defendant. And that he voluntarily surrendered to police. He was a youthful offender and that in accordance with Manu Kovi the case fell into category one and two where 12 to 18 years IHL with part suspension of the sentence in view of the willingness to pay compensation.
	Prosecution submission

13.	The State Prosecutor Mr. Luman filed a written submission on an appropriate sentence to be considered in the case citing the Supreme Court case of Lawrence Simbe v The State [1994] PNGLR 38 where it was held that each case must be decided on its own fact or a case by case approach bearing in mind that the maximum sentence under section 300 was life years but subject to section 19 of the Criminal Code. I accept this submission and will treat this case on its own facts and circumstances including the tariff and the range in various Supreme Court and National Court cases.

14.	He correctly cited the case of Simon Kama v The State (2004) SC740 where the prisoner appealed against 25 years imposed on a guilty plea to murder. The Supreme Court voiced that it was a prevalent offence. Past sentences were not deterring would be offenders and it was more serious than manslaughter. The Supreme Court reviewed the tariff for murder in (Laura (No. 2)) and suggested tariff in six (6) categories, ranging from 12 years to 16 years for the first category, 17 years to 30 years for the second, 31 years to life imprisonment for the third, 17 years to 21 years for the fourth, 22 years to 40 years for the fifth and 41 years to life imprisonment for the last category. This case demonstrates the need to increase the tariff for murder.  I agree that the sentences are not deterring and must be increased to send that message to the Community.

15.	It was yet again reviewed in the case of Manu Kovi v the State (2005) SC789 where the prisoner had appealed in person against a life year imprisonment imposed by the National Court. He had bought a brand new short bush knife, got on a bus and followed his wife the deceased to the Islander section of waigani road. He got off the bus that he was in and got in the bus where his wife was. Inside he stabbed her repeatedly in view of all who were in the bus until he was stopped, but by then his wife was losing blood and died as a result. The Supreme Court reviewed its earlier cases of Ure Hane, Lawrence Simbe, and Simon Kama and came out with four categories in wilful murder, murder, and manslaughter. 

16.	In accordance with Manu Kovi (supra) it was urged that your case fell into the second category of murder cases in that, there was no strong intent to do grievous bodily harm, and weapon was used as in this case was a scissor; there was some preplanning, and some element of viciousness which drew a term starting at 16 years to 20 years IHL. Further you were entitled to discount on the plea but should not be placed on probation as a human life cannot be replaced. The money paid was reconciliation and not for the replacement of the life that was lost.
17.	You had attacked two other persons immediately. One of whom tried to stop you from further attacking the deceased and you did not stop. You attacked him with the scissors swinging it as he avoided and you stabbed Greg Batari alias Lindon on his back. As you did, the latter attempted to escape and ran but fell down near the road, as he did for the second time you stabbed him with the scissors on his right side on the chest. Then you ran off when pursued by other persons at the scene. You persisted your attack despite being stopped or an attempt to make by the witness there. You attacked this witness who avoided and the scissors imbedded in the back of the deceased. But you were not content and went further inflicting another stab to the right chest of the deceased. 

18.	You pleaded to be accorded mercy by the court. You did not accord the same to the deceased at all. You persisted without mercy and compassion even though you are a Christian of the Catholic faith. You acted without regard for the life of another fellow human being. You stuffed the life out of him depriving his two young children of their father. You made them orphaned for the rest of their lives. You passed the life sentence on them without a father. You will go to prison knowing that you have a father but you must know that life is sacred and can never be taken at the whim of a person just like that. The sanctity of life derives from the teaching to us as Christians that only God can give and take life, not man as you did here. Our Constitution recognizes Papua New Guinea as a Christian country and one of the fundamental rights under the Constitution is the right to life under section 35. The court will give effect in all material form to ensure that you understand and that others like you are deterred and observed that the right to life is basic and fundamental to every living human being.

19.	The court is also mindful of the prevalence of this offence here in Kimbe West New Britain Province and in particular from Talasea where you are from, and all throughout the country. This is a reflection that the sentence imposed must stress the sanctity of life which is a basic human right and a fundamental right under the Constitution.

20.	There was no reason for the attack upon the deceased disclosed in the evidence tendered. The deceased was not attacking you or had provoked the attack in any way. You cannot rely on the assertions in the probation report which is recent in nature compared to the witnesses immediately at the scene. Your assertion the source of the probation report are self-serving not independently corroborated that the deceased did swear at you. As that is not the recollection of the witnesses immediately at the scene at that time. You were the one with the bad mouth not the deceased or anyone else there. You have now realized the impact of your actions and are simply trying to distort the truth as depicted by the witnesses there at the scene. There were six witnesses who witnessed your actions on that day. In the record of interview you did not disclose any reason for the attack upon the deceased. You exercised your right to remain silent throughout the record of interview.  It was conducted immediately after the offence. There was no reason by the witnesses as to why you attacked as you did. But you had attacked an unarmed person minding his own business who had in no way enticed or provoked you to attack as you did. He was a 32 year old man who was so swiftly deprived off his life by your grievous action.

21.	He was dead on arrival on the 5th November 2016 when he was rushed and admitted to the hospital here at Kimbe. The post mortem report dated the 9th November 2016 under hand of Doctor Annette Ketalu Surgical Registrar showed that, “stab wound (3 cm deep) left shoulder. Stab wound 2nd rib, 2nd rib fracture. Stab wound through pericardial sac, and left atrium 1 cm in diameter. Blood collection (1L) in the pericarditis cavity.” She issued a medical certificate dated the 10th November 2016 of death as “cardio Respiratory Arrest, Cardiac Tamponade Stab wound to the heart”.

22.	You have pleaded guilty saving the court time to run a trial in the matter, but that was a decision taken well by you considering that all the evidence in the case was against you. Had a trial being run even with your silence in the record of interview there would have been conviction of the charge of wilful murder considering what you uttered immediately before the stabbing that you would take out somebody’s intestines whilst brandishing the scissors threatening the witnesses and the deceased. You were fortunate that the State had accepted a plea to murder but the facts of your case are very serious and aggravated. The stab is repeated against an unarmed person who has not in any way from the evidence done anything to threaten you or your life in any way or form. You stabbed in the back when no one could have defended in any way or form. And you followed through and repeated to the right chest which is a vulnerable part of the body. This second blow again is serious because the deceased was on the ground and in no position to threaten you or be considered as a threat to you. He was injured from the first stab wound and he was on the ground when you delivered the second blow. From the autopsy report and the medical certificate of death you stabbed his heart and he had no chance in the world of survival from the injuries that you inflicted.  The heart is the centre organ of any human being and your stab eliminated any chances of survival from the injuries that you inflicted. You intended to kill him when you stated that you would take out the intestines immediately before stabbing. You are fortunate that the state had accepted and indicted you with murder. Your facts clearly show wilful murder more than murder. Accordingly your case is more serious than that portrayed and your sentence will reflect that seriousness.

23.	The parents of the deceased Lydia Otto mother and Otto Lesly the father have acknowledged the receipt of the “Belsori” money. They said they missed their son and it is heart breaking as his absence will continue to torment them. As he had left behind two young children who have been denied their rights to know their father. It will impact their lives. They will be satisfied to see you behind bars but if the court orders compensation they are demanding payment of K 500, 000 if the accused cannot meet that they ask the offender and family to vacate the portion of land, surrender the house and blocks. This is not viable as the criminal compensation act allows for the maximum of K5000 and for the family of the Prisoner to be deprived off their land and house no fault of theirs is injustice and the court will not order in those terms. The wrong is the criminal actions of the defendant alone and his family must not be made to suffer the wrong he has committed. Any sentence passed must be upon the actions of the defendant and not any other let alone his family.

24.	This shows out the reality of section 35 of the Constitution the right to life in everyday life where as here young children are deprived of their parent through no fault of theirs. And the grandparents are deprived of their son at the prime of his life at 32 years of age. They both say they are tormented at the loss of their son.  The sentence here must bring some comfort for their torment. It will not bring back the deceased but must reflect sanctity of life observance of the rule of law and deter and punish this very prevalent offence.
	
Sentencing trend tariff 
25.	I now consider what the courts have had to impose following Manu Kovi and the general sentencing trend and tariff  in Java v The State [2002] PGSC 17; SC701 (20 December 2002). In the Java case, the appellant was sentenced to 20 years IHL for the murder of the deceased who had destroyed the food garden of the applicant. When the applicant was told by his wife, he armed himself with a grass knife and went looking for the deceased. He spotted the deceased who ran at the sight of the applicant. He pursued and caught him, cutting him several times from which he bled to his death. He pleaded guilty and the court sentenced him to 20 years IHL. The review was dismissed and the sentence of 20 years was confirmed.

26.	In Mangi v State [2006] PGSC 30; SC880 (30 June 2006), the prisoner appealed to the supreme court on a sentence of 35 years imposed by the National court where it convicted upon circumstantial evidence that pointed to the appellant who had in the course of the fight with the deceased hugged him in a bear hug and both fell to the ground. The deceased was stabbed in the chest and died as a result. There were no eye witnesses. On appeal the Supreme Court considered the case of Manu Kovi (supra) remarking that; “According to the Manu Kovi case, in a murder case, where no weapon was used, where there was little or no pre-planning, where minimum force was used, where there was absence of strong intent to do GBH, a sentence of 12 to 15 years is recommended. 

(a)	However, where there was no strong intention to do GBH but a 	weapon was used, there were some pre-planning, and where there were some element of pre-planning, a sentence between 16 and 20 years is recommended. 

(b)	The next category is for serious murder cases. Where the murder was pre-planned, where the attack was vicious, where there was strong desire to do GBH, where dangerous weapons like guns or axes were used, and, where other offences of violence were committed, a sentence of 20 to 30 years is fixed. 

(c)	This court is not bound by Manu Kovi v The State but we are unable to find any reason to depart from it. The court will follow the sentencing guidelines in the Manu Kovi case also for the sake of consistency.

(d)	 When the appellant’s case is considered in the light of the guidelines and the facts in the Manu Kovi case, where 25 years was imposed for a much more serious murder, the sentence of 35 years in the appellant’s case is considered excessive. The trial Judge has, therefore, made an identifiable error on sentence.” Here the court reduced the 35 years sentence to 16 years IHL viewing that a knife was used but there was no preplanning two drunken men fighting leading to the death.

27.	In State v Harisu [2006] PGNC 137; N3168 (24 October 2006), a sentence of 22 years was imposed where the defendant had gone to shake hands with the deceased who had killed his father. Deceased refused and said like I killed your father, I will do the same to you. The deceased then got an axe and charged at the defendant and both struggled and fell to the ground where the defendant came up with the axe and cut the deceased on the knee and then secondly from his face down to his jaw area. He was charged with murder and pleaded guilty to the charge. After considering Manu Kovi the court passed sentence as above under the third category.

28.	In Nimagi v State [2004] PGSC 31; SC741 (1 April 2004) the prisoner appealed against a 50-year sentence that was imposed by the National court sitting in Bulolo where in the course of a holdup a teacher was shot dead as he tried to rescue his daughter who was taken away by the defendant and others who accompanied him. The court convicted after trial and imposed 50 years IHL. The defendant appealed from that sentence to the Supreme Court. The court dismissed the appeal holding that too much emphasis was placed on youthfulness which should not be guised to sway the full affront of the sentencing discretion. The court adopted the words of the trial judge:

 "I believe that young criminals cannot continue to hide behind the cloak of youthfulness in order to get away with very serious violent crimes. I do not, for one moment, say that youth is no longer a mitigating factor, because it still is. However, in a very serious violent crime such as this one, the plea of youthfulness would lose its significance." 

29.	That is clearly applicable here where counsel defending has urged discount on the basis that the prisoner is a youthful offender. He is 20 years old and therefore not youthful as a 15, 16, or 17 year old would be, even then that is swept aside by the gravity of the offence that he has committed. It is a violent crime inflicted without mercy upon the deceased it was persistently executed with precision and deadly effect to the heart depicted by the medical report. It was effected without decency and regard for human life. I adopt the words of the court there as applying here against the plea of the prisoner and hold that his youth does not mitigate as the aggravation outweighs his plea.

30.	You were prepared and expected that you would use the scissors in the way that you had used as it was readily available concealed within your body in your clothing in the event that you would attack as you did here it would be readily available by you against those who were against you. In fact you saw fit to attack two others one of whom successfully escaped from you. Then you were drawn to the deceased who tried to talk you down you persisted, another witness one Tonny Agole came in between to stop you, you by then had drawn out the scissors and swung at him. He avoided and the swing ended up imbedding in the back of the deceased who ran away from you. You pursued him, he fell down, you stabbed him second time on his chest with the scissors piercing his heart from which he bled to his death. It cannot be held that you were acting on the spur of the moment without any preplanning; clearly there was preplanning and preparedness to execute.

31.	In State v Mohavila [2006] PGNC 106; N3385 (25 October 2006), the defendant with his father and others approached the deceased and asked him as to the death of a relative over sorcery allegedly by the deceased. An argument ensued in the course of which the defendant cut the deceased on his left hand. He retaliated and cut the defendant on his left side of his head then he retreated behind another and dropped the bush knife which the defendant picked up and cut the deceased twice on the deceased forehead from which he bled to his death. The court imposed the maximum penalty of life years IHL.

32.	In Enn v The State [2004] PGSC 36; SC738 (1 April 2004) on the morning of 17th June 2000, the appellant left his village for Togel village to attend a reconciliation meeting with the aim to resolve an outstanding dispute. In the course of that meeting, the victim, Mathew Wamina and Margaret Daka had an argument and they then fought. Thomas Gend, one of their clansmen stopped the two from fighting. After they were stopped, the deceased walked back to where he was, to sit down. The appellant armed with a long bush knife walked up behind the deceased and struck the deceased with the bush knife on the left side of the neck. The impact of the knife blow was such that, the head was totally severed from the body.

33.	The medical report made on the deceased on 30th May that same year showed that the deceased sustained a severed neck from a sharp object applied with great force.

34.	Upon arraignment the appellant pleaded guilty and was sentenced to 20 years imprisonment. He now appeals against the sentence of 20 years imposed on him. The court dismissed the appeal confirming the sentence of 20 years IHL.

Sentence

35.	In Manu Kovi (supra) and all the cases (supra) there is underlying reason as to why the defendants have behaved in the way they have, in your case there is no reason for the attack. You picked a fight on one Tonny Giru who escaped and then you picked on the deceased but he talked you down, you did not heed instead you attacked him and another one Tonny Agole stopped you, but you attacked him also with the scissors. He avoided and the blow you effected landed on the back of the deceased who ran away in an attempt to escape from you. You followed him and he fell helpless you came upon and stabbed him on his chest piercing the heart.

36.	I have thoroughly considered all matters and consider that you are sentenced to 20 years IHL. I deduct the time in custody of 6 months 1 day leaving the balance of 19 years 5 months 3 weeks 6 days IHL.

Orders accordingly.
________________________________________________________________
Public Prosecutor	: Lawyer for the State		
Public Solicitors	: Lawyer for the Defendant